1 Dec 2015
Mark Stevens
Job Title
Image: © Jens/Fotolia.
Employers want to know what their employees are doing at work. From a purely practical point of view, they want to be sure employees are spending their working hours performing the tasks assigned to them.
Employers are vicariously liable for the actions of their employees in the course of their duties – meaning if the employee causes damage or loss to a third party, the employer may be at risk of being found liable for its employees’ actions.
So what are the legal obligations, how they might be met by employee monitoring, and what should employers take into account before going down that route?
Smoking in enclosed or substantially enclosed public places and workplaces in England has been banned since 1 July 2007. This means employers must ensure premises used as a place of work by more than one person, or where the public may enter, are kept smoke free. But what does that mean for practices that have employees who are smokers?
According to a 2014 study conducted by the Centre for Economics and Business Research for the British Heart Foundation, smoking breaks cost employers £1,815 a year in lost productivity for each full-time member of staff who takes four 10-minute smoke breaks during working hours.
Employers may also have to respond to those employees who do not smoke, who may complain their colleagues have the advantage of a shorter working day as a result of regular smoke breaks.
The legal position, however, is relatively clear – generally, there is no right to regular short breaks during the working day, whether for smoking or otherwise. Instead, workers have the right to one uninterrupted 20-minute rest break during their working day if they work more than six hours a day.
If an employer feels a fair and transparent system needs to be put in place, then it could set out specified breaks in its employee handbook (for example, 15 minutes in the morning and then 15 minutes in the afternoon) to ensure everyone feels they are being given the opportunity to take the same breaks during the course of their working day.
But what of e-cigarettes? In the recent case of Insley v Accent Catering, a caterer at a school was asked to attend a disciplinary hearing having been seen using an e-cigarette in front of pupils. The caterer resigned before the disciplinary hearing took place, so the tribunal was not required to decide whether or not she would have been fairly dismissed. The tribunal noted, however, that although the school’s smoking policy clearly banned smoking on school premises, it did not prohibit the use of e-cigarettes. These cigarettes are unlikely to fall under the statutory smoking ban as they involve the inhalation of vaporised mist, rather than smoke.
This means to prohibit the use of e-cigarettes at work, an employer must make it clear in its non-smoking policy the use of these items is expressly prohibited.
Under the Health and Safety at Work etc Act 1974, employers have a duty to ensure a safe place and safe systems of work for their staff. Protecting employees from alcohol and drugs misuse can be a part of this, and it is sensible to ensure employers have clear rules about coming to work while under the influence of alcohol or drugs, or drinking alcohol or taking drugs at work.
Employers should give some thought about how to deal with employees who suffer from alcohol or drug dependency. While alcohol and or drug addiction are specifically excluded from amounting to a “disability” under the Equality Act 2010, conditions arising from substance misuse – for example, a liver condition or depression – may well meet the definition of disability. In light of this, employers should draft policies that are supportive and help staff to deal with underlying alcohol and drug dependency problems they may face.
Particular care will be required in relation to employees who are required to drive as part of their duties – new changes in the law mean greater scrutiny is being placed on “drug driving”. It is now illegal for a person to drive with legal drugs in their body if those drugs impair their driving. As always, employers should consider the risk of being found vicariously liable for their employee’s actions and make sure their rules and procedures make clear what conduct would be unacceptable.
Linking in with monitoring alcohol and drug use at work, an employer may wish to conduct searches of its employees or their possessions. Employers should exercise care before undertaking a search – particularly if the employer is not only searching its own property (such as a locker), but the employee’s possessions.
The best action would be to develop a clear policy setting out when and in what circumstances an employer can undertake searches. This will place the employee on notice searches may be performed. It is important an employer applies any policy consistently. Failure to do so may give rise to an employee arguing that they are suffering discrimination.
Employers may also consider whether it is necessary to draft a policy to state employees should submit to drug screening. This is only likely to be relevant where staff:
Even where a drug screening policy is in place, employers will not be able to require staff to submit to drug testing without their specific consent. The monitoring policy may, however, be drafted to say withholding consent will be treated as misconduct in itself.
Monitoring employee use of email and the internet involves the processing of personal data and so the impact of the Data Protection Act 1998 should be considered.
The Information Commissioner, who oversees compliance with data protection issues in the UK, has issued guidance in the form of The Employment Practices Code1 which employers should familiarise themselves with before considering monitoring an employee’s email and internet usage. Central to the guidance is that employers undertake a risk assessment before engaging in monitoring.
The guidance suggests the risk assessment should look at identifying clearly the purpose(s) behind the monitoring arrangement and the benefits it is likely to deliver, identifying any likely adverse impact of the monitoring arrangement, alternatives to m
onitoring or different ways in which it might be carried out, taking into account the obligations that arise from monitoring, and judging whether monitoring is justified.
Employers should be satisfied the right balance has been struck between the intrusion into an employee’s private life and the business’ need for monitoring.
In addition, employers must ensure employees understand:
Employers should, at the very least, ensure there is an effective employee monitoring policy in place. Ideally, it should go further – perhaps ensuring that as part of the induction training employees understand when their email and IT use might be monitored, providing training and issuing reminders on staff intranet or email systems.
The rules around when employers can monitor and test their employees can be complicated. Clearly, well-drafted policies and procedures are key. It is important, however, any such policies and procedures are applied consistently.
Where the employment tribunal is required to hear cases involving employee monitoring, it is invariably because the employee alleges a policy has been inconsistently applied, or that they have been singled out in some way.
